The Religion Clauses of the First Amendment and Foreign Relations
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DePaul Law Review Volume 36 Issue 1 Fall 1986 Article 2 The Religion Clauses of the First Amendment and Foreign Relations John H. Mansfield Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation John H. Mansfield, The Religion Clauses of the First Amendment and Foreign Relations, 36 DePaul L. Rev. 1 (1986) Available at: https://via.library.depaul.edu/law-review/vol36/iss1/2 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. THE RELIGION CLAUSES OF THE FIRST AMENDMENT AND FOREIGN RELATIONS John H. Mansfield* INTRODUCTION The constitutional law of church and state is a subject of deep and inexhaustible interest. It raises questions that present fundamental issues concerning human nature and the purposes of political society. In the present article I examine an aspect of this topic that has received little attention: the application of the religion clauses of the first amendment to situations having an international aspect, particularly situations involving United States activity in foreign countries. What I have to say about this topic will be exploratory in nature, with more questions raised than answered. My interest in the present subject was aroused by the following sort of case: The American Jewish Congress and officials and members of the Congress, who were also United States citizens and taxpayers, sued to enjoin a Saudi Arabian-United States cooperation program on the ground that because of the Saudi policy of discriminating against Jews, Jews would be excluded from the program.' One plaintiff alleged that he had been denied a job with a university consortium involved in the program because of his Jewish religion, ancestry and identity. 2 Dismissal of the complaint was affirmed because of lack of standing of the plaintiffs or "want of equity in the complaint." 3 A pilot was hired in Fort Worth, Texas, to fly helicopters over a pilgrimage route in Saudi Arabia.4 The pilot understood that a condition of his em- ployment was that he become a Moslem. At first he agreed, but then changed his mind and instead filed suit under Title VII of the Civil Rights Act., The court held that being a Moslem was a bona fide occupational qualification 6 for the job. * John H. Mansfield, John H. Watson, Jr. Professor of Law, Harvard Law School; A.B., LL.B., Harvard. The substance of this article was delivered as two lectures under the auspices of the Center for Church/State Studies of the DePaul University College of Law, March 13 and 14, 1986. 1.American Jewish Congress v. Vance, 575 F.2d 939 (D.C. Cir. 1978). 2. Id. at 942. 3. Id. at 947; id. at 948 (McGowan, J.,concurring). 4. Kern v. Dynalectron Corp., 577 F. Supp. 1196 (N.D. Tex. 1983), aff'd, 746 F.2d 810 (5th Cir. 1984). 5. 42 U.S.C. §§ 2000e - 2000e-17 (1982). 6. Kern, 577 F. Supp. at 1201-02. DEPA UL LA W REVIEW [Vol. 36:1 A religiously-affiliated organization doing work among refugees in Thai- land received United States government support. The organization, it was said, mingled religious proselytization with humanitarian work.7 The problem was handled administratively.' The Islamic government of Pakistan was initially uninterested in permitting American religiously-affiliated organizations to be involved in providing assistance, some of it coming from the United States government, to Afghan refugees in Pakistan. As a result of negotiations, a compromise was reached by which a consortium of organizations was allowed to provide assistance under highly restrictive conditions. 9 This topic is difficult to pursue because plaintiffs often have trouble obtaining standing in cases involving the foreign relations of the United States, and courts frequently avoid decision in these cases by invoking the "political question" doctrine.' 0 These obstacles recently led a court to affirm the dismissal of a suit challenging the appointment of a United States ambassador to the Vatican." Nevertheless, a substantial amount of litigation relevant to this topic has developed in which the standing requirement and the political question doctrine have not prevented decision. 2 Furthermore, even though sometimes there are reasons for courts to avoid these disputes, serious constitutional questions are presented that the political branches of the government must decide, and to which scholarship perhaps can make a contribution. The problems presented by these cases are important because of the manifold involvements of the United States abroad. Mention need only be made of our government's support of development programs in many foreign countries. The topic is also important because of the light it can bring to 7. B. NICHOLS, AT HoME IN No MAN'S LAND 21, 625 (forthcoming, Oxford U. Press; pagination to 1986 manuscript). 8. Id. at 21. 9. Id. at 16, 381, 475. 10. For a recent discussion of the "political question" doctrine and a recommendation that "we must abandon the political question doctrine in all its manifestations," see Redish, Judicial Review and the "Political Question", 79 Nw. U.L. REV. 1031, 1059-60 (1984-85). 11. Americans United for Separation of Church & State v. Reagan, 786 F.2d 194 (3d Cir.), cert. denied sub nom. American Baptist Churches v. Reagan, 107 S. Ct. 314 (1986). Dismissal of the suit was affirmed on the ground that the plaintiffs lacked standing as taxpayers, citizens or members of non-Catholic religions that arguably were disadvantaged by diplomatic recog- nition, and also on the ground that diplomatic recognition is a "judicially unreviewable political decision." Id. at 201. The final part of the court's holding may embrace the proposition that courts have no power to determine whether the political branches of government have violated the first amendment in extending diplomatic recognition. For a discussion of when the political question doctrine should not apply even though there is a foreign element in the case, see Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1512-15 (D.C. Cir. 1984) (en banc), vacated and remanded, 105 S. Ct. 2353 (1985) (case remanded for reconsideration in light of events oc- curring since court of appeals' decision), aff'd, 788 F.2d 762 (D.C. Cir. 1986) (dismissal of complaint affirmed on ground controversy too attenuated to justify equitable relief). 12. See, e.g., infra notes 176-87 and accompanying text. 1986] RELIGION CLAUSES AND FOREIGN RELATIONS 3 domestic church-state issues. When we see ourselves as one society among many, some very different from our own, and ponder the perspective of the Constitution on this confrontation and interaction, we can deepen our insight into the philosophy that underlies the Constitution. Perhaps this philosophy endorses neither heavy-handed cultural imperialism nor complete cultural relativism, but while insisting upon certain fundamentals, also gives recog- nition to the many paths by which humanity makes its way. In pursuing the present topic, I have found it necessary to paint on a large canvas. The challenge has been to see the subject in relation to other subjects. Consequently, in what follows, I will discuss some things that at first glance may not seem particularly relevant. For instance, I will begin with a discussion of familiar domestic church-state cases. Also, I will discuss cases that arise under provisions of the Bill of Rights other than the religion clauses. In due course, I hope to persuade that consideration of these matters is useful in approaching the problems we have to confront. I. DoMESTIC CASES In domestic cases arising under the religion clauses, the essential question is the extent to which American governments are permitted or required to maintain the position in our society of the truths that make up the philosophy of the Constitution and the extent to which they are permitted or required to provide room for other beliefs that conflict with these truths. The answer to this question is found by inquiry into the content of the constitutional philosophy itself, what it asserts about human nature, about the purposes of political society and about the value of freedom of individuals and groups. Let us review some familiar cases for the light they can bring to the content of the constitutional philosophy and the balance it strikes between social unity and the freedom of individuals and groups. Later we can ask what difference it makes if these cases arise in Kuala Lumpur rather than in Kansas and, if it makes a difference, what truths of the constitutional philosophy would explain that difference. Mrs. Sherbert, a Seventh Day Adventist, lived in Spartanburg, South Carolina. Because of her religious beliefs she would not work on Saturday. As a result, she could not get work in the Spartanburg area because all of the mills in the area required Saturday work. Mrs. Sherbert applied to the state authorities for unemployment compensation. The South Carolina ad- ministrative authorities and courts determined, however, that because of Mrs. Sherbert's reason for not being able to get work, she was not qualified for unemployment compensation under South Carolina law. The unemploy- ment compensation fund, they decided, was reserved for unemployment resulting from other causes. On review by the Supreme Court of the United States,' 3 the Court held that the free exercise clause of the first amendment 13. Sherbert v. Verner, 374 U.S. 398 (1963). The holding of Sherbert was reaffirmed in Hobbie v. Unemployment Appeals Comm'n, 107 S. Ct. 1046 (1987). DEPA UL LA W REVIEW [Vol. 36:1 entitled Mrs. Sherbert to be included in the unemployment compensation program, even though this undermined South Carolina's policy of preserving the unemployment fund for other purposes.